As Attorney General Michael Mukasey’s stand on government torture meets widespread criticism — including, increasingly, from the organized Jewish community — a former Israeli military attorney who oversaw terrorist cases is pushing for the United States to borrow, selectively, from Israel’s approach to the issue.
Since a 1999 High Court ruling mandated it, says Amos Guiora, Israel has established a “no-torture-based paradigm” that contain key elements the U.S. should adopt; but also some elements it should avoid.
“I have ordered the detention of hundreds of Palestinians suspected of terrorism,” Guiora, now a professor of international law at the University of Utah, writes. “I have had the opportunity to examine the conditions of suspects and have been subjected — like them — to the loud and obnoxious music, have clearly met with sleep-deprived individuals who complained about the temperature in the detention facility [and] have seen detainees sitting for extended periods in very uncomfortable positions with hoods over their heads.”
In that context, said Guiora, a 20-year IDF veteran, he found Mukasey’s testimony before Congress earlier this month and last “totally outrageous and beyond the pale.”
“It was extremely troubling,” he said, “because he refused to acknowledge what water boarding is. He skirted the issue.”
Increasingly, that is also the view of a Jewish community that had in large part earlier dodged the torture issue — in some cases explicitly out of concern that taking a strong stand would invite critical scrutiny of Israeli practices.
“It’s true that a year ago, there was not really much” in the way of lobbying and advocacy on the issue, said Hadar Susskind, Washington director of the Jewish Council on Public Affairs, the Jewish community’s main umbrella group for addressing domestic issues — this, despite a resolution denouncing torture that JCPA passed in 2006.
But lately, he said, “We’ve seen an awakening on the political front.”
Susskind noted that his group had just called on its member agencies — which include national groups such as the Anti-Defamation League, the American Jewish Committee and religious organizations from all the streams of Judaism — to lobby for an anti-torture measure now before Congress. The provision would require all government agencies in the war on terror to comply with interrogation guidelines in the Army Field Manual — effectively outlawing CIA use of “enhanced interrogation techniques,” including water boarding. President Bush has vowed to veto the measure, if passed.
In addition to JCPA activism on this issue, the American Jewish Committee passed a resolution denouncing torture last December, joining the Reform movement’s clear stand on the issue via its Religious Action Center in Washington. The resolution specifically condemned water boarding, “an interrogation practice associated with the Spanish Inquisition and prosecuted under U.S. law as torture as much as a century ago,” calling the technique “unquestionably torture.”
This marks a sharp shift from a period during which the group Rabbis for Human Rights was the main, and often only, group engaged in intense activism on the issue.
Still, Morton Klein, president of the Zionist Organization of America, voiced a cautionary note. “Obviously, any decent person would say you should not use torture just to inflict pain on an enemy. But what if the government has captured a terrorist who knows about an upcoming attack on a synagogue or Jewish institution? Would the American Jewish Committee state you should not use water boarding in those circumstances?”
The JCPA’s Susskind termed Mukasey’s recent congressional testimony “disappointing.” Water boarding involves strapping down a detainee and pouring or dripping water through his nose and mouth, often via a wet cloth. It induces an instant feeling of drowning and imminent death, usually accompanied by intense vomiting. International law prohibits absolutely the use of torture, which it defines as “any act by which severe pain or suffering” is imposed on a detainee as punishment or as part of interrogation. “Cruel and degrading” treatment is also banned under international law.
CIA chief Michael Haden has acknowledged using water boarding on three terrorism suspects after 9/11 but says his agency currently bans the procedure. Nevertheless, the administration has reportedly retained a classified legal opinion that would permit its use.
Haden has also admitted his agency’s use of “enhanced interrogation techniques” authorized by President Bush against 35 prisoners. The permitted techniques reported include forcing prisoners to stand for long periods handcuffed and shackled to the floor, and sleep deprivation.
In his testimony, Mukasey rejected repeated efforts to get him to acknowledge that water boarding was torture, though when Sen. Edward Kennedy asked if it would be torture if done to him, he replied, “I would feel that it was.” He also refused entreaties to order an investigation of apparent past water boarding by the CIA despite Haden’s admissions.
Guiora, 50, a former military prosecutor and judge in the occupied territories, and legal adviser to the Israeli navy, argued that as attorney general, “[Mukasey] has an obligation to articulate exactly what water boarding is: torture.”
Guiora, now a faculty member of the University of Utah’s S.J. Quinney College of Law, is about to come out with a book comparing the recent legal history of the U.S. and Israel on the issue of torture. The Oxford University Press book, “Constitutional Limits on Coercive Interrogation,” advocates a “hybrid paradigm” for the U.S. that would incorporate elements of Israel’s current legal approach.
The former IDF lieutenant colonel does not endorse the Israeli approach as a whole, however, because of a “loophole” allowed by the High Court ruling: In cases of “ticking time bomb” suspects, an interrogator who employs prohibited methods may use a “necessity defense” after the fact.
“I think this is one of those areas where you need to be almost black-and white,” he said. “The necessity defense is erasing the crime afterward.”
Indeed, the Public Committee Against Torture in Israel — the group that successfully brought the 1999 case before Israel’s High Court in which the court banned previously permitted techniques — has recently cited numerous cases in which, it argues, recent detainees have been tortured as “ticking bombs” despite reason to doubt this was the case.
The cases in question include beatings, stress shacklings and sleep deprivation, by Israeli security officials among other measures.
International law, noted PCATI spokesman Louis Frankenthaler, prohibits torture in any case, even for “ticking bombs” — in no small part as a reaction to the Holocaust and the torture policies of the Nazis during World War II.
For his part, Guiora also stressed that as a matter of personal, practical experience, torturing “ticking bombs” only hurts the goal of obtaining actionable intelligence when time matters urgently.
“If I tortured you, trust me, you would say that you shot killed both Lee Harvey Oswald and Jack Ruby — with the same bullet,” he said. Torturing terrorist suspects, even when they have real information, results in, “a lot of junk” meant to stop the pain, along with any accurate intelligence that may be mixed in. “When it’s a real ticking bomb situation, checking out this information leads to “misallocation of resources. And you have no time to lose. You just can’t allow yourself to go there.”
The key to successful interrogations, Guiora stressed was “gaining the detainee’s respect.”
Laying hands on him, he said, engenders only his fear, contempt and resistance.
Instead — controversially — Guiora argues for a system that would in highly restricted circumstances permit the use of certain “coercive techniques” that are “unpleasant but not torture. These include loud music, stress positions and sleep deprivation done in ways that fall short of inflicting severe pain.
Under his proposals, however, the top official of the security agency in question would have to justify and sign off on authorization for these measures in writing; a doctor with independent authority to stop the proceeding detainees would have to be on the premises; the detainee would retain a Fifth Amendment right against self-incrimination — including the right to have a lawyer present who could demand that interrogation be halted; and all this would be subject to judicial review — the key virtue, he said, of Israel’s system.
Guiora also stipulated that what techniques are permitted and prohibited be specific, public and subject to open debate — in contrast to the administration, which rejects such disclosure on the grounds that it would aid the enemy.
“That is very wrong,” he said. “The public needs to know what is being done in its name.
And the interrogators need this more than anyone. They very much want clearly articulated limits. And we as a public have the responsibility to have their back.”
“I argue that traditional criminal law, with its interrogation measures from ‘Law and Order,’ is as inapplicable as torture when it comes to terrorism suspects,” he said.
Frankenthaler, of the Public Committee Against Torture in Israel, shares Guiora’s vehement opposition to the administration’s stand. But after hearing the ex-military lawyer’s own proposals described, he said simply: “You’re describing torture.”
“He is describing a more subtle use of pain and discomfort against people who are essentially defenseless,” he said.
But with his book’s April release date drawing near, Guiora is undeterred. “These proposals are meant to influence the debate now taking place in Congress with increasing intensity,” he said. “And as far as I know, come next Jan. 20, there will be a new administration in power.”

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